DEATH ROW U.S.A. Winter 2018 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Winter 2018 (As of January 1, 2018) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,768 Race of Defendant: White 1,170 (42.27%) Black 1,152 (41.62%) Latino/Latina 365 (13.19%) Native American 27 (0.98%) Asian 53 (1.91%) Unknown at this issue 1 (0.04%) Gender: Male 2,713 (98.01%) Female 55 (1.99%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 33 Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 20 Alaska, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: New Mexico repealed the death penalty prospectively. The men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Fall 2017 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2017 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Byrd v. United States, No. 16-1371 (Driver’s expectation of privacy when not on rental lease of car) (decision below 679 Fed.Appx. 146 (3rd Cir. 2017)) Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter's permission to drive the car but is not listed as an authorized driver on the rental agreement? Carpenter v. United States, No. 16-402 (Warrantless cell phone tracking) (decision below 819 F.3d 880 (6th Cir. 2016)) Question Presented: Is the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days permitted by the 4th Amendment? Collins v. Virginia, No. 16-1027 (Automobile search exception) (decision below 790 S.E.2d 611 (Va. 2016)) Question Presented: Does the 4th Amendment's automobile exception permit a police officer, uninvited and without a warrant, to enter private property, approach a home, and search a vehicle parked a few feet from the house? Fifth Amendment Hays, Kansas v. Vogt, No. 16-1495 (Use of incriminating statements at probable cause hearing) (decision below 844 F.3d 1235 (10th Cir. 2017)) Question Presented: Is the 5th Amendment violated when incriminating statements are used at a probable cause hearing but not at a criminal trial? Sixth Amendment MCoy v. Louisiana, No.16-8255 (Right to a defense in a capital trial) (decision below 218 So. 3d 535 (La. 2016)) Question Presented: Is it unconstitutional for defense counsel to concede an accused's guilt over the accused's express objection? Fourteenth Amendment Class v. United States, No. 16-424 (Appellate claims that survive a guilty plea) (decision below No. 15-3015 (DC Cir. 2016)) Question Presented: Does a guilty plea inherently waive a defendant's right to challenge the constitutionality of his statute of conviction? Death Row U.S.A. Page 2 2. CASES RAISING HABEAS CORPUS QUESTIONS Ayestas v. Davis, No. 16-6795 (Resources to investigate and develop a claim) (decision below 817 F.3d 888 (5th Cir. 2016)) Question Presented: Did the 5th Circuit err in holding that 18 U.S.C. § 3599(f) withholds "reasonably necessary" resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made? Dunn v. Madison, No. 17-193 (“Unreasonable application” of federal law) (decision below 851 F. 3d 1173 (11th Cir. 2017)) Questions Presented: 1) Do the Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it? (2) Was the state court objectively unreasonable in concluding that Madison was competent to be executed? Decision: In a per curiam decision, the Court held that the state court’s determination that Madison was competent to be executed because he understood he was to be executed for a murder he was found to have committed was not an unreasonable application of federal law and was supported by the evidence, despite Madison’s memory loss as to the specific facts of the murder or prior procedures. Kernan v. Cuero, No. 16–1468 (“Clearly established” federal law) (decision below Cuero v. Cate, 827 F.3d 879 (9th Cir. 2016)) Question Presented: Did the court of appeals exceed the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment? Decision: Yes. In a per curiam opinion, the Court decided that none of its decisions clearly established that a state must honor an original plea agreement rather than allow the defendant to withdraw his plea after amendment of the criminal complaint in a way that permitted a higher sentence to be imposed. Wilson v. Sellers, No. 16-6855 (Habeas review of summary state court ruling) (decision below 834 F.3d 1227 (11th Cir. 2016)) Question Presented: Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply? 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Hughes v. United States, No. 17-155 (Precedent of a 4-1-4 decision) (decision below 849 F.3d 1008 (11th Cir. 2017)) Question Presented: 1) Does the USSC's decision in Marks v. U. S., 430 U.S. 188 (1977), mean that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality's reasoning nor the concurrence's reasoning is a logical subset of the other? 2) Under Marks, are the lower courts bound by the 4-Justice plurality opinion in Freeman v. U.S., 564 U.S. 522 (2011), or, instead, by Justice Sotomayor's separate concurring opinion with which all 8 other Justices disagreed? 3) As the 4-Justice plurality in Freeman concluded, is a Death Row U.S.A. Page 3 defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Guidelines range? Murphy v. Smith, No. 16-1067 (Defendants’ attorney fees in § 1983 suit) (decision below 844 F.3d 653 (7th Cir. 2017)) Question Presented: Does the parenthetical phrase "not to exceed 25 percent" in 42 U.S.C. § 1997e(d)(2) (providing for fees for the losing defendant’s lawyers from the successful plaintiff’s monetary award) mean any amount up to 25 percent (as four circuits hold), or does it mean exactly 25 percent (as the Seventh Circuit holds)? Rosales-Mireles v. United States, No. 16-9493 (Plain error review in federal cases) (decision below 850 F.3d 246 (5th Cir. 2017)) Question Presented: To meet the standard of the 4th prong of United States v. Olano, 507 U.S. 725 (1993), concerning correction of a plain error, is it necessary, as the 5th Circuit required, that the error be one that "would shock the conscience of the common man, serve as a powerful indictment against our system of Justice, or seriously call into question the competence or integrity of the district judge?" United States v. Sanchez-Gomez, No. 17-312 (Interlocutory appeal of use of pretrial physical restraints) (decision below 859 F.3d 649 (9th Cir. 2017)) Question Presented: Did the court of appeals err in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot? Death Row U.S.A. Page 4 As of January 1, 2018 Total number of executions since the 1976 reinstatement of capital punishment: 1465 Race of defendants executed Race of victims total number 1465 total number 2148 White 817 (55.77%) White 1626 (75.70%) Black 504 (34.40%) Black 329 (15.32%) Latino/a 121 (8.26%) Latin 148 (6.89%) Native American 16 (1.09%) Native American 5 (0.23%) Asian 7 (0.48%) Asian 40 (1.86%) Gender of defendants executed Gender of victims Female 16 (1.09%) Female 1047 (48.74%) Male 1449 (98.91%) Male 1101 (51.26%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 755 51.54% 20 1.37% 17 1.16% 6 0.41% 0 0% Black Defendant 288 19.66% 168 11.47% 20 1.37% 15 1.02% 0 0% Latino/a Defendant 51 3.48% 3 0.20% 59 4.03% 2 0.14% 0 0% Asian Defendant 2 0.14% 0 0% 0 0% 5 0.34% 0 0% Native Amer.